People v. Wilson

• Decision Date: 11 October 2012
• Docket Number: No. 10CA0788.,10CA0788.
• Citation: 411 P.3d 11
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Derrick Demetrus WILSON, Defendant–Appellant.
• Court: Colorado Court of Appeals

411 P.3d 11

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Derrick Demetrus WILSON, Defendant–Appellant.

No. 10CA0788.

Colorado Court of Appeals, Div. I.

Oct. 11, 2012.

As Modified on Denial of Rehearing Nov. 29, 2012.

John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Carolyn A. Blanchard, Crested Butte, Colorado, for Defendant–Appellant.

Opinion by Judge TAUBMAN.

¶ 1 Defendant, Derrick Demetrus Wilson, appeals the judgment of conviction entered on jury verdicts finding him guilty of sexual assault with a deadly weapon, unlawful sexual contact with force or violence, and second degree kidnapping of a victim of sexual assault. He also appeals the sentence imposed after the trial court convicted him of three habitual counts. We reverse and remand the case for further proceedings.

I. Background

¶ 2 The prosecution's evidence established that on May 17, 2003, Wilson attacked the victim on a secluded street, dragged her to some nearby trees, sexually assaulted her after putting a gun to her head, and then escaped in his vehicle. DNA evidence collected from the victim's rape examination yielded a positive match to Wilson in 2008. Expert testimony presented at trial established a probability of one in fifteen trillion that the DNA belonged to someone other than, or unrelated to, Wilson. At trial, Wilson argued that the DNA evidence was not conclusive, and that someone else was the assailant.

II. Batson Challenge

¶ 3 Wilson contends the trial court clearly erred in overruling his Batson challenge to the prosecutor's peremptory strike against Mr. E, an African–American potential juror. We agree.

A. Standard of Review

¶ 4 In People v. Cerrone, 854 P.2d 178 (Colo.1993), Colorado implemented the three-step analysis, created by the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to evaluate claims of purposeful discrimination during jury selection. Under this test, (1) a defendant must establish a prima facie case of discrimination; (2) the prosecution then must give a race-neutral explanation for its peremptory strike; and (3) the court must decide whether the defendant has proven discrimination by a preponderance of the evidence.

People v. Collins, 187 P.3d 1178, 1182 (Colo.App.2008). "[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

¶ 5 Here, the parties acknowledge the first and second steps of the Batson analysis were satisfied. However, Wilson challenges the trial court's finding under the third step that he failed to prove racial discrimination in the prosecution's peremptory strike of Mr. E. Because the trial court is in the best position to consider the credibility of the prosecution's explanations, we afford great deference to its determination. Miller–El v. Cockrell, 537 U.S. 322, 339–40, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller–El I ). However, "deference does not imply abandonment or abdication of judicial review," and the trial court's ruling may be overturned when unreasonable or premised on incorrect facts. Id. at 340, 123 S.Ct. 1029 ; People v. Robinson, 187 P.3d 1166, 1173–74 (Colo.App.2008). Thus, we review for clear error the trial court's factual determination regarding whether the defendant proved discrimination. Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) ; Valdez v. People, 966 P.2d 587, 590 (Colo.1998).

B. Batson Violation

¶ 6 A defendant has "the right to be tried by a jury whose members are selected by nondiscriminatory criteria." Powers v. Ohio, 499 U.S. 400, 404, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Thus, the use of a peremptory challenge to purposefully discriminate against a juror of a protected class is a violation of the prospective juror's right of equal protection under the Fourteenth Amendment of the United States Constitution. Collins, 187 P.3d at 1181 (citing J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) ). "Purposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." Batson, 476 U.S. at 86, 106 S.Ct. 1712.

¶ 7 In selecting a jury, the prosecutor may not act with "discriminatory purpose" when exercising peremptory challenges. Collins, 187 P.3d at 1181. " ‘Discriminatory purpose’ ... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected ... a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group." Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion) (quoting Personnel Adm'r v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) ).

¶ 8 Here, during voir dire, the following colloquy took place between the prosecution and the prospective juror, Mr. E:

PROSECUTOR: Mr. [E], ... [d]o you have confidence in scientific evidence?

PROSPECTIVE JUROR: Yes, I do.

PROSECUTOR: And would it cause you any pause that the witness may not be able to identify her attacker?

PROSPECTIVE JUROR: That would.

PROSECUTOR: Okay. Let's talk about that a little bit. Do you think there are crimes that are committed when nobody is around?

PROSPECTIVE JUROR: Yes.

PROSECUTOR: Okay. And let's say, for example, somebody broke into your house, you weren't there, so you became the victim of a burglary. But you weren't there, so you don't know who it was.

PROSPECTIVE JUROR: Okay.

PROSECUTOR: If that person left a fingerprint or some DNA evidence behind, would you be comfortable in prosecuting that case?

PROSPECTIVE JUROR: I think I would in that case, yes.

PROSECUTOR: Let's assume that in this case, the surprise—it's dark, and people don't get a good enough look at the attacker to make positive identification. Does ... any of that in and of itself make you think that we can't prove these charges?

PROSPECTIVE JUROR: Not in and of itself, no.PROSECUTOR: Okay. If we can prove to you beyond a reasonable doubt identification via scientific evidence, not through eyewitness testimony, and you, of course, have to weigh the value of our evidence, but if we can do that, would you be comfortable in returning a verdict of guilty?

PROSPECTIVE JUROR: I believe so.

¶ 9 Following voir dire, the prosecutor used her first and only challenge to strike Mr. E. Wilson raised a Batson challenge in response. The prosecutor gave the following reasons to support her strike:

Your Honor, the People would indicate, first of all, that Mr. [E]—we do believe we have reasonable reason for excusing him. The biggest concern was that he was very uncomfortable with the lack of eyewitness identification. That he was not sure about the science of DNA, and if the victim could not identify someone, it would not—the DNA in and of itself is not enough.

I think I've already said this, but it was his discomfort with the DNA evidence and his concern about the ability to return a verdict of guilty if, in fact, the victim could not do an eyewitness identification in the case.

¶ 10 Wilson's counsel responded: "Judge, I believe he said the exact opposite. My notes indicate that he indicated that he was comfortable with DNA, and that he would have no problem with the alleged victim not being able to identify the—."

¶ 11 After not allowing Wilson's counsel to respond further, the trial court denied the challenge:

Well, you know, in terms of the DNA, he kind of waffled back and forth. But what I heard specifically on the ID issue is that there was a general question where all the jurors said, Yeah, cases get decided every day, burglary, for example, and [the prosecutor] used this with a different juror particularly; I can't remember this juror. He hesitated for an extended period, and when responding to the question about the ID and the inability of the complaining witness to make an ID of the suspect here, he indicated some concern or question about it.

The Court is satisfied that the prosecution has stated an appropriate basis to excuse Mr. [E] on that basis.

¶ 12 Wilson challenges the trial court's crediting the prosecutor's race-neutral reasons for excusing Mr. E. Thus, our analysis rests on the third step of the Batson analysis.

¶ 13 The third step in Batson requires the trial court to determine whether the defendant "has established purposeful discrimination." Batson, 476 U.S. at 98, 106 S.Ct. 1712. "The court must review all the evidence to decide whether the opponent of the strike has shown, by a preponderance of evidence, that the proponent of the strike sought to exclude a potential juror because of a discriminatory reason." Collins, 187 P.3d at 1182 (citing Craig v. Carlson, 161 P.3d 648, 654 (Colo.2007) ). In such a determination, the decisive question is whether the prosecutor's race-neutral explanation for the challenge should be believed. Id.; see Miller–El I, 537 U.S. at 339, 123 S.Ct. 1029. "[T]he plausibility of the prosecutor's race-neutral explanation becomes relevant, such that incredible explanations ‘may (and probably will) be found to be pretexts for purposeful discrimination.’ " People v. Gabler, 958 P.2d 505, 507 (Colo.App.1997) (quoting Purkett, 514 U.S. at 768, 115 S.Ct. 1769 ).

¶ 14 To determine whether the prosecutor's explanation is credible, courts consider, among other things, how reasonable or how improbable the explanation is, whether the explanation has some basis in accepted trial strategy, and the prosecutor's demeanor. Miller–El I, 537 U.S. at 339, 123 S.Ct. 1029. The prosecutor's credibility is called into question where his or her explanation rests on a reason that could be equally applied to remaining jurors not of the protected class. See id. at 343, 123 S.Ct. 1029 (rever...